Damnosa Hereditas-Special Courts-Martial

• Author: By Major Henry B. Cabell
• Pages: 06

1. INTRODUCTION

   The sweeping changes in the concepts of warfare which have resulted from the development of nuclear weapons, missiles, eltronic devices, and mobility on an unprecedented scale have required the discarding or modification of many fundamental and long accepted methods of waging war. In recognition of the magnitude of these changes, new organizations and tactics are being devised, not only to take full advantage of the increased combat power available to the military commander, but also to minihe the impact of the employment of nuclear weapons by an enemy.

   If these new military techniques and the battle formations designed to employ them are to achieve maximum effectiveness, current administrative procedures must be adapted to fit their requirements. Included in theee administrative procedures is the Uniform Code of Military Justice' which providas the commander with coercive powers and courts-martial for the maintenance of that high degree of discipline which is a prerequisite to the 8uc-cessful conduct of military operations.

   One of the types of courts-martial authorized by the code is the special court-martial.2 In this article the practical and administrative difficulties incident to the use of special courts-martial by battle groups and separate battalions will be examined. This ex-amination will be performed with B view toward supporting recommendations for changes in the present classification of courts-martial which appear to be necessary to adapt them to the needs of the modern Army.

   11. ORIGIN OF SPECIAL COURTS-MARTIAL

   Inferior courts-martial, composed of three or more line officera and designed primarily for the trial of the soldier-misdemeanant, have been a part of the judicial system of the Army since 1176. Originally these courts were called regimental and garrison courta- * The Judge Advoeate General's Corps, United States Army; Pembu aithe Teras State Bar; Graduate af the Universiw of Texan law School.

   110 U.S.C. 801-940 (1952 ed., Supp. V). Citations to the UnUorm &de

   of Military Justice are hereafter designated by the article nvmber and the initials "UCMJ."

   2 Art. 18, UCMJ.

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   martiaL8 Although they were required to adhere generally to the procedures of general courts-martial, they were forbidden to impose a fine exceeding one month's pay or imprisonment at hard labor for a period in exceas af one month.'

   Regimental and garrison courts-martial were the only inferior courts-martial used by the Army for nearly 90 years. Then in 1862, Congress required regimental commanders to detail a field grade officer of the regiment as a field officer's court to try soldiers of the regiment for crimes or offenses not capitaL6 The first summary court-martial was created in 1890 and it assumed the functions of the field officer's court in 1898.' Significantly, the powers with respect to punishment of all types of inferior courts-martial were substantially the same. The principal distinction in their respective jurisdictions was that summary courts were to be wed in preference to regimental or garrison courts-martial unless the accused demanded trial by a multi-member court." As a result, regimental and garrison courts-martial were gradually falling into disuse.

   Special courts-martial were authorized in 1913, primarily for the purpose of providing an effective and active court to replaee regimental and garrison courts-martial which were abolished in the enabling act.$ The new special court-martial was to consist of three to five officers and have the power to try any person subject to military law for any crime or offense not capital. It might adjudge punishment not to exceed confinement at hard labor for six months and the forfeiture of six months' pay and, in addition thereto, reduction to the ranks in the case of noncommissioned officers.0 It was an intermediate tribunal for the trial of offendere

   8 American Articles of WBI of lT76, Arts. XXXVII, XXXIX, Wkthmp, Militam Law and Precedents 056 (Id ed.. 1020 reprint).

   ,American Articles of War of 1786, Art. 4; Winthrop, OP. Cit., N W ~ , at 972.

   I Act of 17 Jul 1862, 12 Stat. 508. The act dm provided that no soldier serring with his regiment nhouid be tried by a regimentd OF garrison court-martial when it was posaibie to convene a field officer's court. In the revisionof the artieiu of war in 1874, the operation of field officer's court$ was restricted to time of war (Revised Statutes, seetion 1342. Article SO).sAet of 1 Oct 1800, 26 Stat. 64s; Act of 18 Jun 1808, 30 Stet. PES. Thefirst iummary eovrt was designed to complement the field officer'b court and thus eonid be canrened only in time of peace. The 1898 act was inteilded tosimplify the appointment of these single officer courts and to group their functions inra a. new ~vmmary court-martial which was subatantially similar to the m e we have today.

   1 Aot of 2 Mar 1801, section 4, 81 Stat. 951. Under the tema of thin act d l inhior courts-martial were authorhed to impale confinement at hard labor for three months and the f0deiture of three months' pay.

   8 Act of 3 Mar 1013, 37 Stat. 722. 8

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   DAMNOSA HEREDITAS

   who were deemed worthy of retention in the command but in need of punishment greater than that which could he...